Journal of Air Law and Commerce

Volume 18 | Issue 4 Article 5

1951

Jurisdiction in High Seas Criminal Cases - Part IWilliam E. Hilbert

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Recommended CitationWilliam E. Hilbert, Jurisdiction in High Seas Criminal Cases - Part I, 18 J. Air L. & Com. 427 (1951)https://scholar.smu.edu/jalc/vol18/iss4/5

JURISDICTION IN HIGH SEAS CRIMINALCASES - PART I

By WILLIAM E. HILBERT

Captain, U.S.N., Ret.; Private practice, Oakland, California; Mem-ber California, District of Columbia, and U.S. Supreme Court Bars;U.S. Naval Academy, B.S., 1918; Columbia University (School ofLaw), M.A., 1926; George Washington University, LL.B., 1933;Georgetown University, LL.M., 1937, and S.J.D, 1938; FormerlyU.S. Navy 1915-46; Office of the Judge Advocate General, NavyDepartment, 1930-33; Chief of Military Law Division, 1936; Chiefof Administrative Law Division, 1937-38; Chief of Contracts, RealEstate and Insurance Division, 1940-41; Organizer and Chief ofLegal Advisory Unit to Commander-in-Chief, Pacific Ocean Areasand Pacific Fleet 1945; Part-time instructor in LaW, University ofSan Francisco, 1949-1951; lecturer in Aviation Law, U.S. Naval AirStation, Alameda, California.

THE title to this article could well be the question - "Where, forthe past year and a half, could a common law crime, even murder,

go unpunished in any court of law?" The answer, as given by a rulingof one of our Federal Courts, would appear to be - "On a U.S. com-mercial airliner flying over the high seas. . . ." The only U.S. case inpoint, and therefore the leading one on this subject, is the unfortunatedecision in the U.S. District Court (Eastern District of New York), onMarch 17, 1950, U.S. v. Cordova and Santano (89 F. Supp. 298). It washeld that the Federal courts are without jurisdiction to punish thecrime of assault and battery, committed by two Puerto Rican passen-gers against the pilot and the stewardess, while a plane was flying fromPuerto Rico to New York.

It is problematical whether that decision would or should stand up,if another similar but better argued and considered case should cometo trial today, ie. even before the rectifying Congressional action rec-ommended by the court is taken Four Bills' have been introduced inCongress to plug this gap in the law, and, at the same time of writingthis article all four appear to be still pending in the respective JudiciaryCommittees. All have the identical purpose of adding a new subsection(5) to section 7 of title 18, U.S. Code. The purpose, in the McCarran

bill, is stated "to confer Federal jurisdiction to prosecute certain com-mon-law crimes of violence when such crimes are committed on anAmerican airplane in flight over, the high seas or over waters withinthe admiralty and maritime jurisdiction of the United States."

Even if the rectifying legislation should be enacted before thisarticle is published, the situation into which, for the past year and a

IH.R. 2739 on Feb. 19, 1951 (Mr. Celler); H.R. 2985 on Feb. 28, 1951 (Mr.Keating) ; and two identical bills S.- 2149 on Sept. 20, 1951 (Senator McCarran)and H.R. 5547 on Oct. 1, 1951 (Mr. Celler). See also Note 13.

427

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half, the Cordova case has cast our American idea of justice, is so un-enviable, that it is felt desirable to submit that opinion to a minutecritical examination. It is further desired to express the belief that (a)it should never have been decided as it was,2 and (b) that since it wasso decided, it's effect should have been nullified, if possible, by animmediate appeal, which should have been, but was not, taken by thelocal district attorney. In all justice to the Court, it should be men-tioned that the Court itself, in its opinion, recommended the quickform of appeal now available in such Federal cases where the U.S. is aparty. The justice department not only failed to appeal, but apparentlyalso delayed rather long in pressing the introduction of correctivelegislation.

As will be pointed out later, in spite of the suggestion in the opin-ion, there is no jurisdiction other than in the Federal courts to punishcrimes of the type of the Cordova case. However, before elaboratingthereon, it might be well to consider a few of the basic factors under-lying the general questions of jurisdiction in the airspace, in bothInternational Law and Domestic Law.

STATUS OF AIRSPACE IN INTERNATIONAL LAW

While among scholars of International Law there have been verystrong advocates, and a few still remain - of a right of unlimited free-dom of navigation of the entire airspace - regardless of location, acontrary view, recognizing national sovereignty in definite areas, hasnow generally crystallized as International Law The latter view hasbeen made the basic concept in practically all aviation treaties andmultiple agreements, and two general rules prevail, i.e., First, the air-space follows the legal status - metropolitan, colonial, or territorialwaters - of the land or water area of the sovereign state' below it; SEC-OND, the airspace over the HIGH SEAS, or such "no-man's land" area-as exists in the Arctic and Antarctic, is free to all. Within the freeair, all sovereign nations have equal RIGHTS and DUTIES.

Aircraft, both public and private, in the free airspace, are subjectsolely to the jurisdiction of its national sovereign. Whether this juris-diction is governed by the flag it flies, the state of incorporation of theoperating company, or the citizenship of its actual owners, is a matterfor each sovereign to decide. The policy of the United States, has been,in the case of merchant ships, to look behind the' corporate identity,when -its citizens clearly seek to evade U.S. laws and obligations, byincorporating abroad. The policy would be, in all probability thesame in cases of. aircraft engaged in International trade.

While the status of merchant ships and aircraft parallel each otherin most respects in International Law, there are, however, a few pointswhere they are treated differently. ,One important departure occurswithin the purview of our subject, i.e., their relative status while with-

2 See for disagreement with this viewpoint, J. C. Cooper, 37 American BarAssociation Journal (April 1951) p. 257.

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in a territorial coastal belt. Their difference of treatment is primarilyhistorical. Under International Law a foreign merchantman has a"right of innocent passage" through a coastal belt. Under this rightit can pass through the belt at any time it pleases, so long as certainspecific statutes which effect the peace, dignity, or tranquility of theadjacent state are not violated (smuggling, piracy, sanitation, blockadein time of war, etc.). But this "right of innocent passage" DOES NOTAPPLY TO A FOREIGN AIRPLANE flying over the coastal belt.Prior approval, either by treaty or by individual special permission, isnecessary before a foreign plane may enter the coastal belt, in the samemanner as for an entry over the land area. Exceptions would appearto be made in case of distress or other urgent humanitarian reasons.By this new concept, the sovereignty of the adjacent nation is completein the airspace over the coastal belt, while it is "limited" on the watersurface area thereof. It would appear to follow that, in the absenceof treaty, a crime committed on board a foreign aircraft, while it fliesabove the coastal belt, would be within the jurisdiction of the adjacentnation, regardless of whether the plane on that flight touches on anairfield of that nation, or whether the plane merely passes over thecoastal belt on its way to a third nation. In the latter situation, on amerchant ship, the adjacent sovereign would not have jurisdiction ofany crime which does not intimately affect'it.

There are two other aspects of International Law which requireextended comment in this connection. In both of these, it is most re-grettable that we, in the United States, who from the time of our found-ing fathers, have prided ourselves on being leaders in the field of legaljustice, and of freedom of the seas have now placed ourselves in a mostunfortunate and reprehensible position. The first of these relates tothe status of an aggrieved foreigner on a U.S plane in flight over thehigh seas. The other is the effect, on airspace rights, in areas over theentire continental shelf, far out to sea beyond the three mile belt, asa result of a series of recent claim "grabs," by many nations. In thismovement, large newly defined areas, called "Territorial Seas" as dis-tinguished from the hitherto known "Maritime Belt" or "TerritorialWaters," have come into being. Even though a few such claims existedin the past, our government, by two proclamations,$ one claiming theocean bed and subsoil of the entire continental shelf, and the other thefishing rights therein, was a leader in a mad scramble for claims, andhas set a most unfortunate example.4 Both of the above mentionedmatters will be further elaborated at appropriate points in connectionwith the analysis of the Cordova case.

3 Proclamations Nos. 2667 and 2668 and Executive Order No. 9633, all threeon September 28, 1945, 10 Federal Register pp. 12303, 4, and 5.

4 "Recent Developments with respect to the Continental Shelf," by R. Young,Vol. 42 (1948) Am. Journ. I.L. p. 849, "The Legal Status of Submarine AreasBeneath the High Seas." Young, ibid. Vol. 45, p. 225. Other recent articles andnotes and many references to comments, at home and abroad, all contained inAmer. Journ. I.L., Vol. 45 (1951), pp. 177, 240, 338; ibid. Vol. 48 (1950) pp. 553,670, 780, 849; ibid. Vol. 40 (.1946) pp. 53, 173.

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SOURCES OF FEDERAL JURISDICTION

When the airplane became sufficiently economic in character torequire governmental supervision in the United States, the States tookthe lead in regulation, starting with Massachusetts in 1911. The Stateregulatory movement was carried forward until in 1922 the "UniformState Aeronautic Act" was promulgated. By 1926 most states had someform of Safety Regulations. Between July 23, 1920 and 1923 sometwenty-four bills were introduced, without success, in Congress,5 toregulate air mail or air commerce or both.

During this period, spirited debate took place in Congress, withinthe American Bar Association, and amongst law review writers,6 regard-ing the proper source of constitutional power for federal air regulation.Some argued that a new constitutional amendment was necessary.Some proposed to use the indirect vehicle of the treaty making powerof Article II Section 2 of the Constitution (i.e., U.S. conclude air treat-ies, and Congress legislate to enforce them). A third group urged theuse of the Interstate and Foreign commerce clause. The main argu-ment used against that clause was that it appeared to leave intrastateair navigation in the hands of the states, whose multiplying and diversi-fied laws were then causing confusion. To overcome this objection, afourth group fought for the use of the Admiralty clause, and empha-sized the close characteristic similarity between the airship and thesurface vessel, in construction, management, navigation and economicproblems. Still others claimed Congress had adequate power underthe provisions for Public Safety, Common Defense, and General Wel-fare clauses of the Constitution. It is interesting to note that, of the24 unsuccessful bills introduced between 1920 and 1923, it appearsthat only four early ones lack mention of Constitutional authority,seven emphasize the Admiralty clause, six the Commerce clause, fivethe Treaty Power, three General Welfare, three Public Safety, and oneCommon Defense. The basis of authority ultimately chosen takes onimportance solely to indicate the general scope of control, by analogyto those regulations already existing in the selected field.

While Congress did not pass a general law until the Air Mail Actof 1925 and the Air Commerce Act of 1926, it must not be presumedthat the Federal Government was inactive in the areonautic field untilthis time. In 1898 an appropriation of $50,000 was made to the WarDepartment for aviation purposes. Starting in 1910 steps were takento foster air mail. In 1915 a very important research and developmentboard, "The National Committee for Aeronautics" was set up by Actof Congress When, in 1917, the Post Office Bill set aside $50,000 forair mail service, the Federal Government, through postal contracts,'started exercising a material degree of control over the flight activitiesof those commercial planes which carried the mail. This indirect con-

5 Rhyne, "The Civil Aeronautic Act, Annotated."6 Zollman, "Admiralty Jurisdiction in Air Law," 23 Marquette Law Review

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trol affected practically all the large air lines, since all needed the Gov-ernment aid to exist.

With the first overall federal regulatory statute, the Air CommerceAct of 1926, jurisdictional emphasis was predominantly the CommerceClause. This basis it now appears was well founded for several reasons.The major portion of the activities of the airlines is commercial innature. Congress had as a guide a set of generally acceptable statutesin the prior Interstate Commerce Acts. The administrative manage-ment of the Interstate Commerce Commission had been very exem-plary, and Congress appeared to feel that it could safely trust the man-agement of the new aviation industry to the I.C.C. pattern. On thewhole this faith of Congress was well placed, for the administration ofour aviation matters has been carried on ably, when compared withmany other governmental agencies. The intervening years must surelyhave driven away the tears and fears of those who cried that State lawswould wreck the industry. The only area of control now left to thestates is that in which Congress, as interpreted by 'the Courts, has beensilent. And when one now looks at the philosophy underlying the lineof decisions starting with the Shreveport case (234 U.S 342), and downthrough that of U.S. v. Sullivan (332 U.S. 698 (1948)), one finds verylittle left, other than the bar of an awakened public opinion, to preventfull control, by federal bureaucracy, of the economic life within everyhamlet and farm, and on every airplane and airfield. Practically theentire area of commercial activity which has heretofore been cherishedas Intrastate, has now been pronounced Interstate.

In the field of Federal Criminal Law all crimes are statutory. Whenour thirteen colonies achieved their independence, all of the unwrittenlaws of England, including the so-called "common law" crimes, becamea part of the laws of each state. However, when the Constitution wasadopted, a broad power to enact criminal laws was given to the fed-eral government, but jurisdiction to punish the common law crimes,as such, did not become a part of the federal system until, and in suchform as, specific Acts' of Congress made them so. Federal courts musttherefore look strictly to Congressio-nal authority for jurisdiction incriminal matters. The crime of assault, in the Cordova case, is in thiscommon law category.

U.S. v. CORDOVA AND SANTANO

In this case, a plane belonging to American owned Flying Tigers,Inc. and chartered by a California corporation, was making a flightfrom San Juan, Puerto Rico, to New York, on August 2nd, 1948, withsixty persons on board, seventeen of whom were children. Most of thepassengers were Puerto Ricans and had been sent off by well-meaningfriends and relatives after a convivial toasting with rum. Many of them,including Cordova and Santano, the principals, had brought severalbottles of rum aboard with them in shopping bags which they took totheir seats. Further drinking took place on board. After about one

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and a half hours from take-off time, and while the plane was over thehigh seas, Cordova and Santano started to argue with one another.The stewardess tried to stop them, but was unsuccessful. Cordova andSantano retired to the rear of the plane to fight, followed by a largenumber of the passengers desirous of watching the fray. This made theplane so tail-heavy that the automatic instruments could not control it,and the plane started a rapid uncontrolled climb. The pilot quicklytook over the manual control of the plane at this point, and was notifiedby the stewardess of the trouble between Cordova and Santano. Turn-ing over controls to the co-pilot, the pilot went back, and tried, in histurn, to stop the fight. Santano quieted down, but Cordova attackedthe pilot, and before he could be subdued, he bit the pilot on theshoulder, drawing blood. Cordova also struck the stewardess.

Cordova was locked up for the remainder of the trip. New Yorkauthorities were notified, and on arrival in New York, Cordova andSantano were arrested. The indictment again Santano was laterdropped.

At the trial, the court decided it had jurisdiction to hear the case.and found the defendant guilty of the acts charged, but granted a mo-tion for arrest of judgment of conviction, on the ground that there wasno federal jurisdiction to punish those acts. The judge concluded thathe "felt very strongly that the government should have the opportunityto review this decision" and called the "attention of the United StatesAttorney to the procedure followed in U S v Flores, supra, and also tothe criminal appeals statute in its present form (18 U.S. Code, sec.3731) . . . For what it may be worth, I certify that my decision turnson no issue of fact but merely the determination of a question of law,namely the construction of 18 U.S. Code, sec. 451 and sec. 455."7

The opinion emphasizes the fact that an "aircraft" is not a "vessel"within the meaning of Federal crimes committed on vessels. With thisconclusion there is no quarrel. But the entire case thereafter proceeds

7 The 1940 version of Title 18 and Title 28 were in effect on August 2, 1948,the time of commission of the crime, so were considered as the basis for the case.On September 1, 1948 the revised Codes were made effective, and former section451 is now 18 U.S.C. sec. 7, while former section 455 is now 18 U.S.C. sec. 113.The former VENUE statute considered in the case was 28 U.S.C. sec. 102 and itis now 18 U.S.C. sec. 3238. The changes in the revision are minor in nature, and,where significant, will hereafter be subjects of comment.

The pertinent parts of the Code considered by the court are:"Title 18 U.S.C.A. sec. 451, reads in part:

'Places and waters applicable; on board American vessel on high seasor Great Lakes; on land under exclusive control of United States; GuanoIslands. The crimes and offenses defined in this chapter shall be punishedas herein prescribed:

'First. When committed upon the high seas, or on any other waterswithin the admiralty and maritime jurisdiction of the United States andout of the jurisdictiop of any particular State or when committed withinthe admiralty and maritime jurisdiction of the United States and out ofthe jurisdiction of any particular State on board any vessel belonging inwhole or in part to the United States or any citizen thereof, or to any cor-poration created by or under the laws of the United States, or of anyState, Territory, or District thereof.'"

"Title 18 U.S.C.A. sec. 455 (part of the same chapter) is entitled:"Felonious assaults; to murder or rape; other felony; with weapons; beat-

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on the erroneous assumption that there can be no punishable crime onthe high seas, under Federal law as it exists today, unless it be commit-ted on a "vessel."

The opinion (p. 300). says the acts complained of must meet one oftwo tests under 18 U.S.C. 451 in order to make operative the statutecondemning striking, wounding and beating, and simple assault withinthe admiralty and maritime jurisdiction of the U.S.-i.e.

(I) Were those acts committed on the high seas, or on any otherwaters within the admiralty and maritime.jurisdiction of the U.S. andout of the jurisdiction of any particular State?

(2) Were those acts committed on the high seas, or on any otherwaters within the admiralty and maritime jurisdiction of the U.S. andout of the jurisdiction of any particular state on board any vessel be-longing in whole or in part to the U.S. or iny citizen thereof or anycorporation created by or under the laws of the U.S., or of any State,Territory, or District thereof?

The second question was answered first by the Court, and theanswer was in the negative, by making it turn on the question ofwhether an airplane is a vessel within the meaning of the statute.Numerous cases were cited and discussed in support of this contention.8

This negative answer to Question 2 is now generally accepted as correct.The opinion then (p. 302) returns to the first- question which is

also answered in the negative. And from this point on, the substanceof almost every remaining material paragraph of the decision and theconclusions drawn from every case cited must b'e controverted. Thiswill be done in detail.

The problem may be approached by a consideration of statutoryconstruction of 18 U.S.C. sec. 451 (1940 Code) and 18 U.S.C. sec. 7(present code). In this code there appear six classifications of physical

areas upon which the "territorial" requirement for criminal jurisdic-tion may be used. Two significant changes in wording of the headingand of paragraph one were also made in the revised Code. The Cordovacase being based on former Sec. 451, its .wording will govern this analy-sis. And since the first three of the area situations will appear fre-quently in this article, they will be referred to as "Ground One,""Ground Two," etc. The heading and first paragraph of Sec. .451 has

ing; simple assault," and reads in part: "Whoever shall unlawfully strike,beat, or wound another, shall be fined not more than $500, or imprisonednot more than six months or both. Whoever shall unlawfully assaultanother, shall be fined not more than $300, or imprisoned not more thanthree months, or both."

"Title 28 U.S.C.A. sec. 102 is entitled:"Offenses on the high seas," and reads: "The trial of all offenses committedupon the high seas, or elsewhere out of the jurisdiction of any particularState or district shall be in the district where the offender is found, or intowhich he is first brought."8 Reinhardt v. Newport Flying Service (1921 N.Y. 128 U.S.av.R. 4, 113 N.E.

371) Crawford Bros. No. 2 (1914, D.C.Wash), 215 Fel 269, 1928 U.S.Av. R 1);U.S. v. Northwest Air Service (9CCA) (1935) 8OF (2d) 804; 1936 U.S. AvR.148; McBoyle v. U.S. (1931) (283 U.S. 25) 1931 U.S. Av Ro 27); Noakes v.Imperial Airways (S.D. N.M. 1939) (28 F Supp. 412), 1939 U.S.Av.R 1).

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already been set forth in footnote 7. The heading mentions the sixgrounds briefly, while paragraph One goes more in detail for Groundsone, two, and three.

Ground One -"Places and waters applicable; ** * upon the High Seas."

Ground Two -"Places and waters applicable ** * on any of the waters withinthe admiralty and maritime jurisdiction of the United -Statesand out of the jurisdiction of any particular State."

Ground Three -Heading - includes ** * on board American vessels on HighSeas" - Then in paragraph one thereunder appears in part -"or when committed within the admiralty and maritime juris-diction of the United States and out of the jurisdiction of anyparticular State, on board any vessel," etc.

Ground Four (in second paragraph-"Upon any U.S. vessel on the Great Lakes."

Ground Five - (in third paragraph) -"On land under the exclusive control of the United States."

Ground Six - (in fourth paragraph) -"On certain designated Guafio islands."

The first three grounds are 'included in the self-same paragraphsince they originated in the same statute, i.e., the Basic Crimes Act of1790. The other three grounds were added by subsequent statutes.

Our immediate inquiry should be directed to the meaning of thefirst three grounds. We surely must assume under principles of legisla-tive interpretation that the drafters of the laws intended each of themto have a distinct meaning, each standing alone. And, furthermore, ifthe normal procedure was used in the draftsmanship of the law, wemay also assume that they (the grounds) have been set forth in thedirect order of their importance.

Ground One covers the maximum physical expanse, i.e. the threedimensional space of our world, outside of the land areas and theirthree mile territorial waters' belt. The phrase used is unrestricted inany way. It doesn't say "on the surface of the water," or "under thesurface of the ocean" or "air-space over the surface of the water." Allthese and even the soil beneath the ocean floor are within its scope,down to the center of the earth. Neither does it use the word "vessel."While the horizontal or shoreward limits of the high seas have beendisputed and misunderstood by various sovereign nations and are eventoday unsettled, there have never been any adverse claims by anynation concerning vertical limits. Our founding Fathers must havealso understood it that way.

Ground Two is next in the order of territorial scope. It covers thegreat expanse of water area commonly understood in the U.S. by thephrase "Inland Waters." For most nations it consists of the maritime

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belt (three nautical miles wide) off its shores plus its navigable inlandwaterways. On the authority of "The Hine" (1866, 4 Wall (71 U.S.)555) and "The Eagle" (-868, 8 Wall (75 U.S.) 15), it may be claimedthat Ground Four (the Great Lakes area) is actually covered, part byGound One and part by Ground Two, and that the statutory declara-tion is needed only for clarification.

The word "upon" is used in the 1940 version of the code but ismissing in the present section 7. Disregarding this word, it shouldagain be noted that in Ground Two - as in Ground One " there is novertical limitation of the area. All parts are included by implication,i.e. the surface of the water, the sub-surface water, the floor of the bedbeneath, the soil below that bed, and also the Airspace Above, up to thesky. Here again the word "vessel" is omitted.

Ground Three is next in order. It has by clear definition a verylimited special scope. It is limited to the space in and on a U.S. vessel.Let us not be deceived by one paradox which appears at this point.While Ground Three is, in a "space-expanse" sense, infinitesimal ascompared with either One or Two, it so happens that, until recentyears, the major part of all human activity in admiralty waters areastook place in or on a vessel floating on the water. In recognition of thisfact, and in order to place a jurisdictional limitation on what propertyfound at sea was to have U.S. character, it would seem that the state-ment of Ground Three is a desirable amplification of the wording ofthe prior grounds. These two factors also furnish an additional reasonwhy Grounds One, Two and Three should be contained in the sameparagraph in the Code. As a further result of the aforementionedparadox, it follows that, to date, practically all adjudicated cases havefallen under Ground Three. But this is a far cry from proving that ifthe crime does not happen to fall in field Three, it is impossible tofind a jurisdictional basis in the much larger fields One or Two.

It is now well recognized and accepted law that an aircraft in flightis not "vessel." At one time it was thought that a hydroplane couldbe classed as a vessel - (Treasury Decision No. 36, 156 of Feb. 10, 1916,1628 U.S. AvR. 85, which held that for importation purposes underthe Tariff Act a hydroplane was a "vessel," but a land plane was not).But Mr. Justice Cardoza, in Reinhardt v. Newport Flying Service Corp.(1921) (N.Y.) (133 N.E. 371) ably convinced the legal profession

that, while a hydroplane on the water might have certain attributeswhich brought it under Admiralty law, when it, or any other aircraft,was off thewater, it was not a "vessel" within the meaning of the Mari-time laws.

Hence it would now satisfactorily appear that jurisdiction forcrimes committed on aircraft in flight over water is lacking, if soughtonly under Ground Three - but that ground does not exhaust the fieldfrom which our jurisdiction may be sought.

Returing now to Ground One, it may be stated that under the Law

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of Nations all of the High Seas are free. Like all laws of freedom, therights accorded are not unlimited, but are circumscribed by a few ex-ceptions, such as those pertaining to piracy, slave trade, navigationrules, fishing rights, rules against floating mines, and certain rights andliabilities of belligerents and neutrals in war. Our nation fought twowars to establish this freedom, an undeclared Naval war of manyengagements with France at the turn of the 19th Century, and the Warof 1812 with England. This freedom is not limited in locality or scopeto the exact surface of the sea, or to one inch, or one foot or one mileabove or below the surface. It is free, on the surface, below the sur-face to the center of the earth, above the surface without visible limita-tion, except for the momentary right to occupy that small space throughwhich an object is at that instant passing. And this right of momen-tary occupation is equally available to the body of a man on or in thewater, a submarine under water, an aircraft above, as well as a surfacevessel. It will also be available to any other contrivance which maybe invented by man in the future and which.is accepted by the civilizedinternational society.

Today jurisdictional questions regarding rights and 'liabilities inthe air space over land are affected by the ancient Roman maxim -"Cujus est solum ejus est usque ad coelum et ad inferos" meaning"He who owns the soil owns everything above and below, from heavento hell." This principle has been relied upon by'the common law todetermine rights in sub-surface minerals, oils, etc. With the advent ofaviation, it has taken on new significance. There has been a four-waytug-of-war regarding the right to control the airspace over land, i.e.(1) the private owner of the land beneath claiming under the maxim,(2) the State, and (3) the Federal Government, both seeking control,

and (4) a group of aviation-minded individuals plus many. learnedinternational scholars contending for complete freedom of the airspacewherever it is not actually and physically occupied. The 'fourth grouphas now lost out entirely, and by a progressive series of statutes andtreaties, the Federal Government is gradually taking control. Stateand municipal governments come next, in order of power to regulate,while the land owners' claims are gradually being whittled to "that partunder physical occupation. But, while over land, the story is more andmore limitation, over the high sea, the airspace is, like the ocean be-neath, free to all.

In addition to the element of control of the airspace, the legal inci-dents of "ownership" of airspace has a direct bearing on our problem.-The concept of property is as applicable to airspace over land, as it is tothe soil which makes up that land, or the water which fills ponds, lakes,or streams. The "test" of "locality," necessary to establish jurisdiction,may be found just as surely inside a section of airspace above the land,as it may on a field on the surface, or in a pit, or down in an under-

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ground mine, or on a pond. And the airspace - be it over land orsea- is not a material vacuum, it is a "locality" which can be physicallyoccupied by man, where he is capable of making a contract, or com-mitting a Tort. He may also commit a crime in that airspace just assurely as he can in a farmer's field, down in a coal mine, on an oceanliner, under water in a submarine, or on the floor of the sea in a divingsuit, picking sponges. To apply the "locality" test and find it presentin airspace above the oceans of the high seas is merely another modernadaptation of the broad principles of law so ably laid down in ourConstitution. The liberal jurisdictional authority contained in thatdocument, together with the Judiciary Act of 1789, and the CrimesAct of 1790 which puts its crimes provisions into effect, constitutesanother example of the great wisdom, far-sightedness and learning ofthat illustrious band of patriots who drafted them. Luckily they have,on the whole, been followed by sufficient men of vision and ability onour judicial bench to have kept the Constitution a living, growingdocument; ever expanding to meet the judicial needs of the moment,and to provide for the requirements of the future.

On p. 302 of the Cordova case the following comment is made:

"Beyond any doubt, Cordova's misconduct took place over the highseas. Is it proper, then, in a criminal case, to extend federal crim-inal jurisdiction to a plane in flight OVER the high seas under astatute which speaks of crimes committed UPON the high seas orON any other waters within the admiralty and maritime jurisdic-tion of the United States?" (Emphasis is the Court's.)It would appear that undue stress has been placed in the opinion

on the choice of words of the statute. The words emphasized by thecourt would seem to be merely prepositions or vehicles which makethe really important words following them tie into a grammaticalwhole. As already pointed out, the vital words are "high seas" and thephrase "on the high seas" is believed to connote a three dimensionalarea synonymous with "on, over and under the surface Of the sea."

On this point another interesting factor is noted. Even though thetrial was concluded only last year, the alleged acts took place on August2, 1948. The revised edition of the Criminal Code was approved byCongress on June 25, 1948 but was not made effective until Sept. 1,1948, i.e. about one month after the assault. The trial was thereforeconducted on the basis of the older, or 1946 version of Title 18. Thenew code revision is a monumental and drastic one, having been con-ducted over an extended period of time by a very large body of menconsisting of members of Congress, the judiciary, and a special staff oftwo large law publishing houses. The acts of the Cordova case tookplace after the work was finished .and approved by Congress, and couldtherefore not have had the slightest consideration in the rewording ofthe revised code.

(To be continued)